COLWELL v. UNITED STATES FIDELITY & GUARANTY CO., 152 F.2d 598

WALLER, Circuit Judge. Plaintiff (appellant), individually, and as guardian of the estate of Herbert G. Colwell, a minor, sought by suit in a state court to set aside an unfavorable ruling of the Industrial Accident Board of Texas and to recover for the death of Amy L. Colwell, wife of plaintiff and mother of said minor, under the provisions of the Texas Workmen’s Compensation Law.

The suit was removed to the District Court of the United States, which, at the conclusion of plaintiff’s testimony, directed a verdict for defendant, holding that the proof was insufficient to show: (1) that the accident was sustained in the course of' deceased’s employment, and (2) that the accident caused, or contributed to, her death. Deceased was employed by the El Paso-Natural Gas Company, whose offices were on the twelfth floor of the Bassett Tower. Employees were customarily allowed fifteen-minute rest periods twice daily, during which time they were permitted to-leave the building.

On December 16, 1943, during the morning rest period, deceased entered the elevator with some of her co-employees. After entering the elevator she suddenly decided to return to her office to get her coat since she was going outside the building, and across the street, to a bank to cash a personal check. As she started to leave the elevator the doors began to close upon her. Apparently unhurt, she returned to her office, got her coat, went to the bank, and then returned to the drug store on the ground floor of the building where she had a drink with her companions.

Later in the morning she complained of feeling ill and started home, but collapsed on the sidewalk before reaching the car which was to take her home. She was given prompt medical attention but died in a hospital a few hours later. An autopsy revealed that she died of a cerebral hemorrhage as the result of the rupture of a blood vessel in a brain tumor.

Article 8307, Sec. 5, of Vernon’s Revised Annotated Civil Statutes of Texas, places the burden of proof on plaintiff affirmatively to show that the death of the employee arose from an injury originating in the work of the employer while the employee was engaged in or about the business of the employer. The testimony is undisputed that although she was paid during these rest periods the deceased was on a personal mission at the time of the accident.

Even if it be conceded that deceased, during- the permissive intermission, was in the course of her employment while she was on the elevator, nevertheless, the proof wholly fails to show that she sustained an injury which either contributed to, or caused, her death. There is no proof as to the type of doors on the elevator, or the force with which they customarily closed or with which they might have struck deceased. It is a matter of common knowledge that elevators are not designed to be death traps and that many types would not cause injury even though they closed with full force against one’s shoulder.

The testimony of the witnesses is so vague, uncertain and indefinite as to be insufficient to show that she received any injury, or trauma, whatsoever. The only witnesses as to the closing of the doors of the elevator on the deceased were her companions, Mrs. H. F. Greggerson, Jr., and Miss Mary Alice Himel. The testimony of these two ladies was all the testimony relating to any accident or injury. Mrs. Greggerson, when asked if Mrs. Colwell was caught between the two doors, answered: “Well, now, I don’t know whether they did or not.

I know that at the time she had a slight hold on the right hand door.” When asked, “Did the doors come in contact with Mrs. Col-well, the door on both sides?” the answer was: “/ couldn’t say whether they did or not, truly.” Miss Himel stated only that: “It seemed to me that the left hand door probably hit her on the left side, possibly on the arm. I don’t know for sure,” Both ladies testified that the elevator waited while Mrs. Colwell went to get her coat, that she went to the bank, and then came back and had a drink at the drug store.

Neither of the witnesses is positive that anything happened in the elevator, other than that as Mrs. Colwell started out, the doors started to close and she put her right hand up against the elevator door. There is no testimony that she complained of being hurt or that she even mentioned the incident thereafter. The witness, Jack Dunn, testified that Mrs. Colwell collapsed on the sidewalk some time later in the day as she started to get in his car.

The doctor who attended deceased and was present at the autopsy, as well as . the one who performed the autopsy, testified that she died of a ruptured blood vessel in a tumor on the brain, and that such a result would have been apt to happen sooner or later without trauma of any kind; that the only external signs of injury were a small wound on her left leg below her knee, and a bruise on her right leg.

There is a total absence of any testimony that she was struck on either leg by the doors of the elevator, and the only reasonable explanation of the bruises is that she received them when she collapsed on the sidewalk after leaving the building to go home. That the cause of her death was the rupture of a blood vessel in a brain tumor, which rupture produced a cerebral hemorrhage, is undisputed. There were no bruises or signs of any trauma around her head and body but only on her legs below the knees.

A doctor who did not attend the deceased, in answer to a hypothetical question, stated that “a severe mental trauma or a severe physical trauma would cause an excessive amount of blood to flow into the brain, therefore putting more stress upon the weakened vessels and causing a hemorrhage” and that the accident in the elevator “probably” contributed to the rupture of the blood vessel. We are of the opinion that the latter doctor’s testimony is of no value because there is a total want of proof of any severe mental or physical trauma in the evidence.

Since the testimony is insufficient to show that any injury was sustained in the course of decedent’s employment that could have caused, or contributed to, her death, it becomes unnecessary for us to decide whether or not the deceased was in the course of her employment at the time of the alleged accident in the elevator. The judgment of the lower Court is affirmed. Mrs. Greggerson gave the following testimony (Tr. 29, 30, 33): “Q. What happened as she went to leave the elevator? A. Well, it happened so quickly, the first impression I had she was clinging to the right hand door. “Q.

Did the doors catch her between the two doors? A. Well, now, 7 don't know whether they did or not. I know that at the time she had a slight hold on the right hand door. “Q. Did she make any expression at that time of excitement? A. Yes. It ivas not mnoh of one, but she did say — there was an exclamation. “Q. Then they re-opened the door, did they — A. Yes. It was not— “Q. It was not entirely closed? A. It was not entirely closed. “Q. Wliat did Mrs. Colwell then do? A. She went on to her department and got her coat, and returned. “Q. Did the elevator wait for her? A. Yes. sir. “Q. And then it went on down? A.

Yes. # * * * * * * “Q. Did the doors come in contact with Mrs. Colwell, the door on both sides? A. I couldn’t say whether they did or not, truly. “Q. Yon saw one of her hands? A. Yes, she seemed to be clinging to the right hand door going out.” (Emphasis supplied.) Miss Himel testified as follows (Tr. 34): “Q. And what happened? A. Well, Mrs. Greggerson and Mrs. Roberts and myself were on the elevator, and Mrs. Colwell— we were all four on the elevator, and Mrs.

Colwell was going to get off of the elevator to get her coat, as well as I saw it or could remember, and the girl started to close the door of the elevator as Mrs. Col-well started out, and it seemed to me that the left hand door probably hit her on the left side, possibly on the arm. 7 don’t know for sure. That was about all I saw. (Emphasis supplied.) “Q. Was she going back to get her coat? A. Yes, sir, she was going back to get her coat. We waited in the elevator there, and all went down together. Q. Did you have refreshments that day on that trip? A. Yes, sir. “Q. Where was it? A.

In the Bassett Tower Drug Store.”